Honomichl v. Leapley, 17762

• Citation: 498 N.W.2d 636
• Decision Date: 07 April 1993
• Docket Number: No. 17762,17762
• Parties: Michael HONOMICHL, Petitioner and Appellant, v. Walter LEAPLEY, Warden of the South Dakota State Penitentiary, Appellee.
• Court: Supreme Court of South Dakota

Page 636

498 N.W.2d 636

Michael HONOMICHL, Petitioner and Appellant, v. Walter LEAPLEY, Warden of the South Dakota State

Penitentiary, Appellee.

No. 17762.

Supreme Court of South Dakota.

Argued Sept. 2, 1992.

Decided April 7, 1993.

John A. Schlimgen of Stuart and Gerry, Sioux Falls, for petitioner and appellant.

Mark Barnett, Atty. Gen., Ann C. Meyer, Asst. Atty. Gen., Pierre, for appellee.

MILLER, Chief Justice.

Michael Honomichl was convicted of first-degree manslaughter arising out of the murder of Randy Caldwell by Honomichl and James Weddell. This court affirmed Honomichl's conviction on direct appeal. ¹ Honomichl then sought habeas corpus relief. After an evidentiary hearing, Circuit Judge Tapken filed extensive findings of fact and conclusions of law and denied Honomichl's petition. Honomichl appeals. We affirm.

Our "scope of review in habeas corpus proceedings is limited, since the remedy is in the nature of a collateral attack upon a judgment." Goodroad v. Solem, 406 N.W.2d 141, 142 (S.D.1987). We use habeas corpus to review "in certain cases, whether an incarcerated defendant has been deprived of basic constitutional rights." Id. at 144.

ISSUE I

WHETHER STATE IMPROPERLY EXERCISED ITS PEREMPTORY CHALLENGE TO REMOVE ELLA HUAPAPI, AN AMERICAN INDIAN, FROM HONOMICHL'S JURY PANEL THEREBY DENYING HIM THE EQUAL PROTECTION OF LAW.

On March 5, 1986, Honomichl and his co-defendants, Weddell and Enos Weston, were indicted for second-degree murder and first-degree manslaughter. The prosecutor was Gary Conklin, the Charles Mix County State's Attorney. Honomichl and his two co-defendants were represented by separate counsel. James A. Haar was Honomichl's court-appointed counsel. ² Lee Tappe was the attorney for co-defendant Weddell. Kenneth Cotton, attorney for co- defendant Weston, was lead defense counsel during voir dire, although all defense attorneys participated. ³

On the first day of voir dire, after Ella Huapapi, an American Indian, was examined, State exercised one of its peremptory challenges on Huapapi. Joseph McBride, an American Indian, was examined and struck for cause, without objection, when he indicated that he knew all of the defendants and would find it difficult to serve on the jury and to be fair and impartial.

On the second day of trial, the day on which Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), was decided, Bertha Hare, an American Indian, was examined and struck for cause, without objection, when she indicated that she had a hearing problem and had known the defendants since they were small boys. After the prosecutor examined Ben Cadotte, an American Indian, he attempted to remove Cadotte for cause as Cadotte had a "disorderly" pending in Charles Mix County at the time. When the prosecutor was unsuccessful, he exercised a peremptory challenge to remove Cadotte. Honomichl concedes that this peremptory challenge was not done with a discriminatory intent. The prosecutor also used peremptory challenges on non-Indian jurors. It is the removal of Huapapi from the jury panel by State through the use of its peremptory challenge which gives rise to Honomichl's Batson challenge.

It has long been established that a defendant is denied equal protection of law when members of his race are purposely excluded from the jury. Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880). Further, the Equal Protection Clause is violated if even one juror is struck for a race based reason. United States v. Battle, 836 F.2d 1084, 1086 (8th Cir.1987).

On the first day of Honomichl's voir dire, April 29, 1986, in order for Honomichl to establish that he had been denied equal protection of law due to the exclusion of members of his race from the jury, he had to prove systematic exclusion of members of his race from the venire panel. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). However, on Honomichl's second day of voir dire, April 30, 1986, the method of proof changed when the United States Supreme Court said that a defendant could now "establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial." Batson, 476 U.S. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87; State v. Farmer, 407 N.W.2d 821, 823 (S.D.1987).

The rule in "Batson applies to all cases not yet final when it was decided." Randolph v. Delo, 952 F.2d 243, 245 n. 2 (8th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1967, 118 L.Ed.2d 568 (1992) (citing Griffith v. Kentucky, 479 U.S. 314, 316, 107 S.Ct. 708, 709, 93 L.Ed.2d 649, 654 (1987)). A case is final when "a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari [expired]." Griffith, 479 U.S. at 321 n. 6, 107 S.Ct. at 712 n. 6, 93 L.Ed.2d at 657 n. 6. "Batson should not be applied retroactively on collateral review of convictions that became final before [Batson ] was announced." Allen v. Hardy, 478 U.S. 255, 258, 106 S.Ct. 2878, 2879-80, 92 L.Ed.2d 199, 204 (1986). Honomichl's trial was in progress when Batson was decided, so a Batson inquiry is required in this collateral review of Honomichl's conviction.

To establish a prima facie case of purposeful discrimination,

the defendant first must show that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate.' Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.

Batson, 476 U.S. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87-88 (citations omitted). The prima facie requirements of Batson were recently relaxed when the Supreme Court held a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same race. Powers v. Ohio, 499 U.S. ----, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). The race of the defendant and the race of jurors peremptorily challenged are now circumstances for the trial court to consider in determining whether defendant raised an inference that State used its peremptory challenges for race-based reasons. Id. "The ultimate burden of persuading the trier of fact that the [prosecutor] intentionally discriminated against [Honomichl] remains at all times with [Honomichl]." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 256, 101 S.Ct. 1089, 1093, 1095, 67 L.Ed.2d 207, 215, 217 (1981); ⁴ Farmer, 407 N.W.2d at 823.

Honomichl and his co-defendants are American Indians. Their victim was caucasian. Two potential American Indian jurors were challenged for cause and the prosecutor peremptorily challenged two others. The habeas court found it relevant that the final jury panel of twelve jurors and one alternate contained no American Indians, although the reasons for removing most of them from the jury panel were apparent. The habeas court found that Honomichl had raised an inference of discrimination and had established his prima facie case. We assume, without deciding, that the habeas court was correct.

Honomichl, by establishing his prima facie case, established a rebuttable presumption of purposeful discrimination. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094, 67 L.Ed.2d at 216. State can rebut this presumption by articulating a "clear and reasonably specific" race neutral explanation for using its peremptory challenge. Batson, 476 U.S. at 97, 98 n. 20, 106 S.Ct. at 1723, 1724 n. 20, 90 L.Ed.2d at 88 n. 20 (citing Burdine, 450 U.S. at 258, 101 S.Ct. at 1096, 67 L.Ed.2d at 218); Farmer, 407 N.W.2d at 823. This explanation does not have to "rise to the level justifying exercise of a challenge for cause." Batson, 476 U.S. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88; Farmer, 407 N.W.2d at 823.

It is settled law in this country that "[u]nless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral." Hernandez v. New York, 500 U.S. ----, ----, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395, 406 (1991). "While it is true that striking a [minority] venireperson for racial reasons is always violative of the Constitution, it is not true that all peremptory strikes of [minority] venirepersons are for racial reasons." United States v. Lewis, 892 F.2d 735, 736 (8th Cir.1989).

Honomichl asserts the habeas court was clearly erroneous when it determined State rebutted the presumption of purposeful discrimination. "A finding of intentional discrimination is a finding of fact entitled to appropriate deference by a reviewing court." Batson, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21, 90 L.Ed.2d at 89 n. 21; Farmer, 407 N.W.2d at 823. "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518, 528 (1985). "In evaluating the race-neutrality of an attorney's explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law." Hernandez, 500 U.S. at ----, 111 S.Ct. at 1866, 114 L.Ed.2d at 405-06.

Honomichl cites this court to more than a dozen cases discussing examples of reasonably clear race neutral reasons for State's exercise of peremptory challenges on minority venirepersons....